Supreme Court of Louisiana: While determining the constitutionality of statutory requisite under La. R.S. 40:1321(J) and La. R.S. 15:542.1.4(C) that, persons convicted of sex offences carry an identification card branded with the words ‘sex offender’, the Court with a ratio of 2:1 held that this requirement constitutes compelled speech and fails to survive the strict scrutiny analysis of First Amendment, hence the requirement is unconstitutional. Observing thusly, Court upheld the decision of the District Court declaring the aforementioned provisions to be unconstitutional.
Facts and Contentions
As per the law prevailing in State of Louisiana (hereafter the State), La. R.S. 15:542.1.4(C) sets forth the penalties for altering a branded identification card and the ‘obtain-and carry’ provision found under La. R.S. 40:1321(J). The defendant was charged with altering an official identification card to conceal his designation as a registered sex offender in violation of La. R.S. 15:542.1.4(C). Stating that the applicable provisions are unconstitutional, the defendant argued that the impugned provisions violate the First Amendment prohibition against compelled speech. The Defendant also objected to showing others an identification prominently showing the words ‘sex offender’ because of the social consequences of that message rather than for religious or political reasons.
Per contra, the State argued that the defendant lacks locus standi to challenge the requirement that he carries his branded identification card, as he was charged with altering it and not failing to carry it. The State further contended that the defendant’s ID card lacked First Amendment protection due to- the impugned statute regulates conduct, not speech; defendant’s actions fell outside of First Amendment protection because they constituted speech integral to criminal conduct; and, defendant acted fraudulently, and fraud is not protected speech. The State also argued that imposition of restrictive measures on sex offenders adjudged to be dangerous is a legitimate non-punitive governmental objective.
The District Court upon perusing the arguments, had quashed the State’s bill of information against the defendant and held that the provisions in question are facially unconstitutional.
The First Amendment provides that the ‘Congress shall make no law… abridging the freedom of speech’ and protects against prohibitions of speech, and also against laws or regulations that compel speech.
The Majority Opinion-
Genovese and Weimer, JJ., formed part of the majority, with Weimer, J., giving his concurring opinion. The majority found the State’s contentions to be non-persuasive. Referring to the precedents of Wooley v. Maynard, 1977 SCC OnLine US SC 63 and Walker v. Texas Division, Sons of Confederate Veterans, Inc., et al, 2015 SCC OnLine US SC 67, the Court deliberated whether Louisiana’s identification is more like a license plate which can be a hybrid of compelled and government speech, or more like a passport. It was noted that identification card branded with ‘sex offender’ is speech, thus, even though an identification card is government speech, a compelled speech analysis may still be required. Perusing the facts of the case, the majority noted that the defendant is required not only to register his residence, to provide information to the government, but he is also required to display the words ‘sex offender’ on his ID card which he will have to show to the public while performing everyday tasks. Furthermore, the branded ID card is compelled speech, and it is a content-based regulation of speech that consequently must pass strict scrutiny. While the State certainly has a compelling interest in protecting the public and enabling law enforcement to identify a person as a sex offender, Louisiana has not adopted the least restrictive means of doing so. “A symbol, code, or a letter designation would inform law enforcement that they are dealing with a sex offender and thereby reduce the unnecessary disclosure to others during everyday tasks. As Louisiana has not used the least restrictive means of advancing its otherwise compelling interest, the branded ID requirement is unconstitutional”.
Disagreeing with the majority, Cairn, J., observed that The First Amendment sternly limits a state’s authority to compel a private party to express a view with which the private party disagrees. Referring to Johanns v. Livestock Mktg. Association, 2005 SCC OnLine US SC 36; the Judge deliberated whether in the present case observers would attribute, or actually have attributed, the speech to the individual rather than to the government. It was observed that nothing about the placement or content of the subject speech remotely suggests it is made or endorsed by the defendant. It declares the defendant is a sex offender. It appears on a state-issued ID card and “Persons who observe designs on IDs routinely—and reasonably—interpret them as conveying some message on the issuer’s behalf” [Walker]. “No reasonable observer, when looking at the ID card, will conclude that the defendant chose to promote his status as a convicted sex offender by voluntarily procuring and personalizing a state-issued ID card to declare that information for the world. This case turns on a single determinative question: who is the speaker? Any reasonable observer of the defendant’s state-issued identification card would readily ascertain the speaker is the government, not the defendant”.[State of Louisiana v. Tanzin Ardell Hill, No. 2020-KA-0323, decided on 20-10-2020]
Sucheta Sarkara, Editorial Assistant has put this story together
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